EARL C. OGDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ogden appealed his convictions for drug possession, paraphernalia possession, and burglary, challenging the imposition of various costs without oral pronouncement. The appellate court affirmed the convictions and sentences but remanded to correct the judgments by striking improperly imposed discretionary costs and investigative costs that lacked agency requests.
The court affirmed the convictions and sentences. Mandatory costs like the section 939.185(l)(a) cost may stand without oral pronouncement, but discretionary costs like the section 938.25 cost must be stricken if not orally pronounced. Investigative costs under section 938.27 must be stricken if the agencies did not request them.
[1] A trial court's order granting a motion to correct sentencing errors is a legal nullity if not filed within sixty days of the motion's filing.
[2] Mandatory costs need not be orally pronounced by the trial court, but discretionary costs must be.
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Join FLexlaw to unlock all legal intelligence“Although a mandatory cost need not be orally pronounced, it is error to impose a discretionary cost without orally pronouncing it.”
Establishes the critical distinction between mandatory and discretionary costs regarding oral pronouncement requirements.
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Join FLexlaw to unlock all legal intelligenceOgden was convicted of possession of cocaine, possession of controlled substance paraphernalia, and burglary of a dwelling in two separate cases. At s…
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Earl C. Ogden appeals his judgments and sentences for possession of cocaine, possession of controlled substance paraphernalia, and burglary of a dwelling. The drag crimes were the subject of one case, and the burglary was the subject of another. Following our review pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm his convictions and sentences but remand for correction of the judgments concerning costs.
Ogden filed a motion to correct sentencing errors under Florida Rule of Criminal Procedure 3.800(b)(2), arguing that the court erred in imposing certain costs without orally pronouncing them: a $65 cost under section 939.185(l)(a), Florida Statutes (2010), in both cases; a $100 cost under section 938.25, Florida Statutes (2010), in the drug case; and sheriffs and prosecutor’s investigative costs under section 938.27, Florida Statutes (2010), in both cases. Ogden also argued that the investigative costs were improperly imposed because the agencies did not request them, as required for their imposition by section 938.27(1). Although the trial court granted Ogden’s motion in part, the order granting partial relief and the amended judgments and sentences were filed more than sixty days from the date Ogden filed the motion. Thus, the order and resulting amended judgments and sentences are legal nullities. Fla. R. Crim. P. 3.800(b)(2); Williams v. State, 72 So.3d 285, 285 (Fla. 1st DCA 2011); Brown v. State, 61 So.3d 1238, 1238 (Fla. 1st DCA 2011); Campbell v. State, 789 So.2d 1213, 1214 (Fla. 1st DCA 2001).
Although a mandatory cost need not be orally pronounced, it is error to impose a discretionary cost without orally pronouncing it. Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012). The cost imposed under section 939.185(l)(a) and the local ordinance implementing it may stand, as it is not discretionary. However, the cost imposed under section 938.25 is discretionary and was not orally pronounced. Therefore, it must be stricken at this juncture. The investigative costs imposed under section 938.27 also must be stricken because the agencies did not request them. Accordingly, we affirm the convictions and sentences and remand this case to the trial court to strike the improperly imposed costs. The court may reimpose the section 938.25 cost after providing notice to Ogden and following the proper procedures. Nix, 84 So.3d at 426. It may not, however, reimpose the investigative costs imposed under section 938.27. DeSalvo v. State, 107 So.3d 1185, 1187 (Fla. 1st DCA 2013). If the trial court elects not to reimpose the section 938.25 cost, Ogden need not be present for the entry of the corrected judgments and sentences. Id.
AFFIRMED in part, REVERSED in part, and REMANDED.
LEWIS, C.J., CLARK, and RAY, JJ., concur.
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Cortez Hatten v. State, 152 So. 3d 849 (Fla. 1st DCA 2014)…entered a corrected judgment to correct these sentencing errors; however, that judgment is a legal nullity because it was filed more than 60 days after Appellant filed his rule 3.800(b)(2) motion. See Fla. R. Crim. P. 3.800(b)(1)(B); Ogden v. State, 117 So. 3d 479 (Fla. 1st DCA 2013). We see no reason that the trial court could,not simply reenter the corrected judgment on remand. Appellant need not be present. AFFIRMED and REMANDED with directions; CONFLICT CERTIFIED. VAN NORTWICK, WETHERELL, and MAKAR, JJ.…
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Cook v. State, 149 So. 3d 1188 (Fla. 1st DCA 2014)…on of error, we remand case number 1D13^4674 to the trial court to strike the imposition of $100 for Sheriffs Office Investigative Cost. This cost was neither , requested by the appropriate agency nor specifically orally imposed. See Ogden v. State, 117 So. 3d 479 (Fla. 1st DCA 2013). Appellant need not be present for the entry of the corrected judgment and sentence. •AFFIRMED and REMANDED for correction. PADOVANO, WETHERELL, and SWANSON, JJ., concur.…
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Johnson v. State, 149 So. 3d 732 (Fla. 1st DCA 2014)…ssues raised by Appellant, but that order (and the resulting corrected judgment and sentence) is a nullity because it was filed more than 60 days after Appellant filed his rule 3.800(b)(2) motion. See Fla. R. Crim. P. 3.800(b)(1)(B); Ogden v. State, 117 So. 3d 479 (Fla. 1st DCA 2013). That said, we see no reason that the trial court could not simply reenter that order on remand.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- NIX v. State, 84 So. 3d 424 (Fla. 1st DCA 2012)
- Campbell v. State, 789 So. 2d 1213 (Fla. 1st DCA 2001)
- DeSALVO v. State, 107 So. 3d 1185 (Fla. 1st DCA 2013)
- Williams v. State, 72 So. 3d 285 (Fla. 1st DCA 2011)
- Brown v. State, 61 So. 3d 1238 (Fla. 1st DCA 2011)